Ruben Zavala Flores v. State

• Court: Court of Appeals of Texas
• Decided: August 25, 2008
• Docket: 13-06-00425-CR
• Status: Published

Opinion

NUMBER 13-06-00425-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

RUBEN ZAVALA FLORES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 206th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Benavides Memorandum Opinion by Chief Justice Valdez

A jury convicted appellant, Ruben Zavala Flores, of three counts of indecency with

a child by contact. See TEX . PENAL CODE ANN . § 21.11(a)(1) (Vernon 2003). The jury

assessed punishment at ten years’ imprisonment on each count with a recommendation

of probation. The trial court entered a judgment based upon the jury’s verdict. In a single

issue, appellant contends the trial court abused its discretion in admitting hearsay testimony. We affirm.

I. BACKGROUND

C.K., a foster child, resided with Dianne Whitinger, a licensed foster parent, and

appellant, Whitinger’s fiancee. On January 13, 2004, appellant entered C.K.’s bedroom,

touched her breasts and vagina, and penetrated her anus with his finger, while C.K.

pretended to be asleep. The following day, while at school, C.K. told two of her friends

about the incident. Her two friends then communicated with Gilberto Izquierdo, an on-duty

school police officer. The subject of this communication forms the basis of this appeal.

II. BACKDOOR HEARSAY

Appellant’s sole contention is that the trial court erred by overruling his hearsay

objection to Officer Izquierdo’s testimony. According to appellant, allowing Officer

Izquierdo to testify that C.K.’s two friends told him that C.K. had a “problem” that happened

“the night before” was backdoor hearsay that served only to prove the matter asserted.

A police officer’s testimony is not hearsay when it is offered for the purpose of

explaining how a defendant became a suspect rather than for the truth of the matter

asserted. Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995). In addition, an

officer’s testimony is not hearsay when it is admitted, not for the truth, but to establish the

course of events and circumstances leading to a defendant’s arrest. Thorton v. State, 994

S.W.2d 845, 854 (Tex. App.–Fort Worth 1999, pet. ref’d) (citing Reed v. State, 794 S.W.2d

806, 809 (Tex. App.–Houston [14th Dist.] 1990, pet. ref’d)). “The critical question is

whether there is an inescapable conclusion that a piece of evidence is being offered to

prove statements made outside the courtroom.” Id. (quoting Schaffer v. State, 777 S.W.2d

111, 114 (Tex. Crim. App. 1989)).

2 Assuming, without deciding, that Officer Izquierdo’s testimony relayed an out-of

court-statement, we nonetheless conclude that his testimony did not constitute hearsay.

We cannot inescapably conclude that Officer Izquierdo’s testimony in this instance was

offered to prove statements made outside the courtroom. See Thorton, 994 S.W.2d at 854

(citing Shaffer, 777 S.W.2d at 114). Instead, we conclude that Officer Izquierdo’s

testimony was admitted to explain how appellant became a suspect in the investigation and

to establish the course of events and circumstances leading to appellant’s arrest. See

Dinkins, 894 S.W.2d at 347; see also Thorton, 994 S.W.2d at 854 (citing Reed, 794

S.W.2d at 809); Garcia v. State, No. 13-05-408-CR, 2007 Tex. App. LEXIS 5080, at *8-9

(Tex. App.–Corpus Christi June 28, 2007, no pet.) (mem. op., not designated for

publication).

Even if the admission of Officer’s Izquierdo’s statement was error, it was harmless

under rule of appellate procedure 44.2(b). We must disregard a non-constitutional error

that does not affect appellant’s substantial rights. TEX . R. APP. P. 44.2(b). At trial, the

State called G.P, C.K.’s friend, who testified, without objection, to the same information

provided by Officer Izquierdo. Moreover, assistant principal Leticia Gonzalez testified, also

without objection, that Officer Izquierdo had informed her that C.K.’s two friends had told

him that “C.K. was crying and upset.” Thus, in light of this properly admitted evidence and

viewing the record as a whole, we have a fair assurance that any purported error in relation

to the admission of Officer Izquierdo’s statement neither influenced the fact finder nor had

more than a slight effect. See Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App.

2004); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998) (citing TEX . R. APP.

44.2(b); King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997)); see also Perez v. State,

3 113 S.W.3d 819, 831 (Tex. App.–Austin 2003, pet. ref’d) (citing Brooks v. State, 990

S.W.2d 278, 287 (Tex. Crim. App. 1999) (holding that any error in the admission of

hearsay testimony was harmless in light of other properly admitted evidence providing the

same facts)). Appellant’s sole issue on appeal is overruled.

III. CONCLUSION

The judgment of the trial court is affirmed.

ROGELIO VALDEZ Chief Justice

Do not publish. TEX . R. APP. P. 47.2(b). Memorandum Opinion delivered and filed this the 25th day of August, 2008.